Madison v. St. Joseph Hosp. CV-95-239-SD 08/28/96 P UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Pamela Madison

v. Civil No. 95-239-SD

St. Joseph Hospital

O R D E R

In this civil action, plaintiff Pamela Madison alleges a

federal claim of employment discrimination based on disability in

violation of the Americans with Disabilities Act of 1990 (ADA),

Stat. 327 (codified at

, et seg.), against defendant St. Joseph Hospital.

Plaintiff brings additional state law claims for wrongful

termination and enhanced compensatory damages.

Presently before the court is defendant's motion to dismiss

pursuant to Rule 12(b)(6), Fed. R. Civ. P. Both parties have,

with leave of the court,1 filed reply memoranda.

Plaintiff's assented-to motion for leave to file a reply memorandum, document 12, is herewith granted. Said reply memorandum has been considered by the court in conjunction with the other pleadings and is ordered docketed as of the date of this order. Background2

Plaintiff Pamela Madison was employed as a charge nurse with

St. Joseph Hospital from June 1992 until she was discharged in

July 1993. Amended Affidavit of Pamela Madison 5 1. In her

Charge of Discrimination filed with the New Hampshire Commission

for Human Rights (NHCHR) , Madison alleges she was discharged on

July 2 , 1993.3 See April 29, 1994, Charge of Discrimination

(attached to Defendant's Motion to Dismiss).

On July 2, 1993, Madison received a telephone call from Jean

Montana, who, on behalf of the hospital, informed plaintiff that

she was no longer employed with St. Joseph Hospital. Amended

Madison Affidavit 5 2. According to plaintiff, she was not given

a reason for the termination at that time. Plaintiff's

Memorandum of Law at 3. One day later, July 3, 1993,4 plaintiff

2The following facts are not in dispute or, except as otherwise noted, have been alleged by the plaintiff.

3Although Madison's charge of discrimination originally alleged the termination occurred on July 3, 1993, see i d . 5 5, she later corrected the date to July 2, 1993, see Madison letter to NHCHR dated April 26, 1994 (attached to Defendant's Motion to Dismiss).

4The court notes that plaintiff's affidavit and supporting memorandum of law contain numerous inconsistencies, even subsequent to amendment at the court's request, as to the years in which the events in question took place. The dates which appear here have been verified by various documents appended to the parties motions and memoranda.

2 received a formal letter of discharge and associated termination

paperwork, i d . 5 3, which listed as the reason for her dismissal

a "violation of hospital policy HR-26," see St. Joseph Hospital

Personnel/Change Form (attached to Plaintiff's Objection as

Exhibit B ) .

Approximately nine months later, on April 5, 1994, Madison

telephoned the NHCHR and spoke with an investigator concerning

the alleged ADA violation. Amended Madison Affidavit 5 5. On

April 29, 1994, the NHCHR received plaintiff's written Charge of

Discrimination. Madison's charge was thereafter forwarded to the

Egual Employment Opportunity Commission (EEOC) on May 4, 1994,

which issued a Notice of Right to Sue on February 2, 1995.

Madison was informed therein that her complaint was

"untimely filed with the Commission, i.e. [she] waited too long

from the date of the action of which [she] complained to file

[her] charge." See Notice of Right to Sue--Title VII/ADA

(attached to Plaintiff's Objection as Exhibit E ) . Madison

elected to "not dispute the Notice of Right to Sue" with the EEOC

because she "wanted to file [her] ADA claim in the federal

court," Amended Madison Affidavit 5 8, which she did on May 3,

1995.

3 Discussion

1. Summary Judgment Standard5

Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Rule 56(c), Fed.

R. Civ. P. In its review, the court must scrutinize "the entire

record, indulging all reasonable inferences in that party's

favor." Rivera-Muriente v. Agosto-Alicea,

(1st

Cir. 1992) (citing Griqqs-Ryan v. Smith,

(1st

Cir. 1990)). "Nonetheless, the nonmovant cannot content himself

with unsupported allegations, rather, he must set forth specific

facts, in suitable evidentiary form to establish the existence of

a genuine issue for trial."

5As both parties in this case have appended numerous documents to their pleadings, defendant's motion to dismiss is herewith converted to a motion for summary judgment. See Puerto Rican-American Ins. Co. v. Benjamin Shipping Co.,

(1st Cir. 1987) (when there is "no unfair surprise and plaintiffs have ample opportunity to provide the court with any relevant information outside the pleadings", the court may properly convert the motion to a summary judgment motion without notice to the parties); but see EEOC v. Green,

(1st Cir. 1996) (district court's "failure to expressly notify the parties of its intention to convert" Rule 1 2 (b), Fed. R. Civ. P., motion to one for summary judgment or to provide "the parties with a minimum of ten days, pursuant to Fed. R. Civ. P. 56(c), in which to augment previous filings" will be excused only when "such a failure . . . is harmless").

4 "Questions anent to the applicability and effect of the

passage of time on a particular set of facts often are grist for

the summary judgment mill." McIntosh v. Antonino,

9 , 33

(1st Cir. 1995). Accordingly, "when a defendant moves for

summary judgment based on a plausible claim that the suit is time

barred, the onus of identifying a trial-worthy issue customarily

falls on the plaintiff." I d . (citing Morris v. Government Dev.

Bank of Puerto Rico,

(1st Cir. 1994)).

2. Timely Filina under the ADA

The Americans with Disabilities Act of 1990 was intended "to

provide a clear and comprehensive national mandate for the

elimination of discrimination against individuals with

disabilities . . . ."

(b)(1) (1995). Count I

of Madison's complaint invokes Title I of the ADA, which

generally provides that no employer subject to the provisions of

the ADA

shall discriminate against a gualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

(a). The definition of the term

"discrimination" under Title I includes, in pertinent part:

5 not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity . . . .

(b) (5) (A) .

"There are several requirements that a plaintiff must meet

. . . prior to filing suit in federal court." McKinnon v. Kwonq

Wah Restaurant,

(1st Cir. 1996) (citing 42

U.S.C. § 2000e-5). "For example, a plaintiff must file a timely

EEOC charge against the discriminatory party, and receive notice

of a right to sue." Id. The "filing [of] a timely charge of

discrimination with the EEOC is not a jurisdictional prerequisite

to suit in federal court, but a requirement that, like a statute

of limitations, is subject to waiver, estoppel, and equitable

tolling." Zipes v. Trans World Airlines, Inc.,

(1982) (footnote omitted); accord

("If the charging requirement is merely a conciliation or

compliance procedure prior to filing suit in federal court, it is

subject to waiver, estoppel and equitable tolling.").

By holding compliance with the filing period to be not a jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to waiver as well as tolling when equity so requires, we honor the remedial purpose of the legislation as a whole without negating the particular purpose

6 of the filing requirement, to give prompt notice to the employer.

; see also Delaware State College v.

Ricks,

(1980) (purpose of Title VII

limitations period is to "guarantee[] the protection of the civil

rights laws to those who promptly assert their rights, [while]

also [to] protect employers from the burden of defending claims

arising from employment decisions that are long past" (citations

omitted)).

a. Accrual

The issue before the court is whether Madison's ADA claim is

time barred as a matter of law.6

In the case at bar, plaintiff initially contacted the NHCHR

by telephone on April 5, 1994, Amended Madison Affidavit 5 5,

but her written charge was not received by that agency until

April 29, 1994. Madison asserts that the 300-day clock began to

6The court acknowledges the distinction between an administrative filing period and a statute of limitations period, where the former is usually shorter, sometimes significantly, than the latter. Since the issue before the court is generally one of accrual, however, precedent that discusses accrual in the context of a statute of limitations provides potent, and dispositive, analogies for the instant issue of timely administrative filing. Although the respective terminal points may differ, both filing periods accrue at the same point in time.

7 run on July 3, 1993, the day she actually received the

termination letter and associated paperwork, since only then did

she realize St. Joseph Hospital was retaliating against her for

taking action under the ADA. Plaintiff's Objection at 3.

Using July 3, 1993, as the operative date, April 29, 1994,

was then the 300th, or last, day available to the plaintiff

within the filing period.7 Defendant contends, however, that the

300-day period commenced to run the previous day, July 2, 1993,

when Madison learned she was no longer employed with St. Joseph

Hospital. Defendant's Motion at 4. In this scenario, the

plaintiff's charge was untimely filed on the 301st day after the

7The court notes that plaintiff's argument advances along discovery-rule-like lines, rather than eguitable tolling. Whereas "the 'polestar' of the discovery rule is not the plaintiff's actual knowledge of injury, but rather whether the knowledge was known, or through the exercise of reasonable diligence, knowable to the plaintiff," Oshiver v. Levin, Fishbein, Sedran & Berman,

(3d Cir. 1994) (citation omitted), eguitable tolling reguires an employee to prove "not only that he was unaware of the employer's discriminatory animus but also that the employer actively misled him, to his detriment,"

(citation omitted). Plaintiff has not asserted, and the facts do not support, the latter argument. Thus, none of the Zipes factors-- waiver, estoppel, or eguitable tolling--operate to expand the 300-day filing window. See

. The timeliness of plaintiff's charge accordingly rises or falls upon whether her present claim was known or knowable on July 2 or 3, 1993. E.g., Quillen v. American Tobacco Co . ,

(M.D. Ala. 1995) ("Failure to file before . . . time elapses reguires the court to dismiss a subseguent lawsuit as untimely." (citations omitted)). alleged unlawful event.

Under Title VII of the Civil Rights Act of 1964, 8 a

complainant's charge of discrimination must be filed with the

EEOC within 180 days after the alleged unlawful event unless it

is initially filed with a state agency, in which case the charge

must be filed within 300 days of the event. See 42 U.S.C. §

2000e-5(e)(1). Since New Hampshire is such a "deferral" state,

complainants are allowed the extended 300-day window in which to

lodge their charge.

Taken together, the deferral and deadline provisions of Title VII mean, first, that a charge filed with a state agency by the 240th day after an alleged violation always will be timely under federal law because the 60-day deferral period will run within the 300-day limitation period, and second, that a charge submitted after the 240th day will be timely only if the state "terminates" its proceedings by the 300th day.

Isaac v. Harvard Univ.,

(1st Cir. 1985).9

"[A] state agency 'terminates' its proceedings when it

declares that it will not proceed, if it does so at all, for a

8Title I of the ADA has adopted Title VII's enforcement provisions. See

(a).

^Assuming April 29, 1994, as the filing date of the discrimination charge, whether Madison's ADA claim accrued on July 2 or July 3, 1993, may be irrelevant if the NHCHR did not "terminate" its proceedings until May 4, 1994, the day plaintiff's charge was actually forwarded to the EEOC--the 305th or 306th day after the discriminatory event. specified interval of time." EEOC v. Commercial Office Prods.

C o .,

(1988). Under the terms of the EEOC-NHCHR

Worksharing Agreement for fiscal year 1994,

The Agency [NHCHR] waives its exclusive processing rights granted to it under Section 706(c) and 706(d) [2000e-5 (e) and 2000e-5(f)] of Title VII in order to facilitate the EEOC to initially process the following categories of charges:

1. Charges received by the Agency that either are not jurisdictional or are untimely with the Agency but which are jurisdictional and timely with EEOC.

10. The Agency will grant advance waivers of their 60 day exclusive jurisdiction over all Title VII charges, including dual filed charges received between 180 and 300 days after the date of alleged discrimination. All such charges shall be referred by the Agency to EEOC for initial processing within 72 hours of receipt by the Agency;

12. Charges filed with the Agency in which the charging party specifically reguests in writing that the EEOC processes the charge.

FY 1994 Worksharing Agreement §§ II.E(l), (10), (12) (emphasis

added). Moreover, "[i]n order to facilitate the assertion of

employment rights, the EEOC and the Agency each designate the

other as its agent for the purpose of receiving charges. . . .

For the purpose of determining timeliness of filing, the

effective date of filing a charge will be the date that the

initial receiving agency first accepts the charge." I d . § IX.A.

10 "[A] state . . . agency's waiver of its exclusive

jurisdiction over discrimination charges accomplishes three

things: A waiver effectively terminates state proceedings within

the meaning of section 706(c). It allows the EEOC to deem the

charge filed, and it permits the EEOC to process the charge

immediately." Griffin v. City of Dallas,

(5th

Cir. 1994) (citing Commercial Office Prods., supra,

). Thus, the court finds that the NHCHR's waiver of

jurisdiction over Madison's charge, "and indeed over all charges

filed after 180 days but before 300 days following the alleged

discriminatory event, was self-executing." I d .; c f . Green,

supra,

& n.6 (noting ambiguities in EEOC-

Massachusetts Commission Against Discrimination Worksharing

Agreement).

The import of this construction of the pertinent statutory

provisions and worksharing agreement waivers is that the "waiver

instantaneously transform[s] the [NHCHR's] receipt of [Madison's]

charge into a filing of that charge and authorized the EEOC to

initiate proceedings on that charge immediately." Griffin,

supra,

; accord Russell v. Delco Remv Div. of Gen.

Motors Corp.,

(7th Cir. 1995) ("Numerous

courts have struggled with this issue and concluded, in different

11 circumstances, that the provisions of various worksharing

agreements operate to provide claimants with the benefit of the

300-day filing period.") (collecting cases). Without guestion,

however, "such filing is timely [only] if the charge is received

within 300 days from the date of the alleged violation." I d . at

614 (guotation omitted). The guestion remains, therefore, when

did Madison's claim of discrimination accrue--July 2 or July 3?

"[T]he date of accrual, i.e., the date on which the

limitations clock begins to tick, is determined by reference to

federal law." Muniz-Cabrero v. Ruiz,

(1st Cir.

1994) (citing

); see also

Street v. Vose,

(1st Cir. 1991), cert, denied,

(1992); Rodriguez Narvaez v. Nazario,

,

41 n.5 (1st Cir. 1990). "Under federal rule, accrual commences

when a plaintiff knows, or has reason to know, of the

discriminatory act that underpins his cause of action."

; see also Chardon v. Fernandez,

(1981);

; Thelen v. Marc's Big Bov

Corp.,

(7th Cir. 1995) ("A plaintiff's action

accrues when he discovers that he has been injured, not when he

determines that the injury was unlawful." (citation omitted));

, 38 F.2d at 1386 ("a claim accrues in a

12 federal cause of action upon awareness of actual injury, not upon

awareness that this injury constitutes a legal wrong" (citations

omitted));

.

In considering the timeliness of a plaintiff's complaint,

"the limitations periods commence[s] . . . when the [adverse

employment] decision was made and [plaintiff] was notified." Id.

at 259. The holding in Ricks--that the proper focus for

determining the limitations window is on the time of the

discriminatory act--has been subseguently affirmed in

, overturning a First Circuit decision

indicating otherwise and adopted by the other circuit courts of

appeal, see, e.g.,

(in employment

discrimination cases, injury is the termination, and a plaintiff

"discovers" such injury when employer communicates termination

decision); Hulsey v. K Mart, Inc.,

(10th Cir.

1994) ("A cause of action accrues . . . 'on the date the employer

is notified of an adverse employment decision. Generally, an

employee is notified of an adverse employment decision when a

particular event or decision is announced by the employer.'"

(guoting Gray v. Phillips Petroleum Co . ,

(10th Cir. 1988)); Merrill v. Southern Methodist Univ.,

(5th Cir. 1986) (limitations period in Title VII

13 cases commences to run on date when plaintiff knows or reasonably

should know that discriminatory act has occurred, not on date

victim first perceived that discriminatory motive caused act).

Consequently, "[t]he Court of Appeals for the First Circuit

has repeatedly held that the limitations period begins running

when an employee first learns of his termination, and not when

the employee first feels the effects of his termination." Runyon

v. Massachusetts Inst, of Technology,

(D.

Mass. 1994). E.g.,

("It is by now

well established that, in employment discrimination actions,

limitations periods normally start to run when the employer's

decision is made and communicated to the affected employee."

(citing

;

23

F.2d at 610));

(holding

that unequivocal notice of the adverse employment action is all

that is required to trigger the limitations period); Chinq v.

Mitre Corp.,

(1st Cir. 1990) (limitations period

began to run when employee learned of his employer's decision to

discharge him and not later when he received formal notice).

By her own admission, Madison learned of her discharge in

the July 2, 1993, telephone conversation with the defendant.

Amended Madison Affidavit 5 2; See also Charge of Discrimination

14 (wherein Madison avers that the discrimination complained of took

place, at its earliest and latest, on July 2, 1993). Although

plaintiff now asserts that she "was unaware that I was terminated

for cause until I received the termination letter on July 3,

1993," i d . 5 3, such awareness is not determinative of the issue

sub judice. See

,

n.9

("That [plaintiff] may not have known on [the date of the

discharge] that her discharge constituted an actionable legal

wrong does not matter for discovery rule purposes.");

("when an employee knows that he has been

hurt [i.e., discharged] and also knows that his employer has

inflicted the injury, it is fair to begin the countdown toward

repose. And the plaintiff need not know all the facts that

support his claim in order for countdown to commence."); Iglesias

v. Mutual Life Ins. Co.,

(D.P.R. 1996) ("the

point in time at which the conseguences of the act become hardest

to bear--which may or may not coincide with the occurrence of the

act itself--has no relevance for purposes of framing the

limitations period").

Insofar as the plaintiff learned of her employer's decision

to discharge her and received effective, clear, and unambiguous

notice of the adverse employment action on July 2, 1993, the

15 court herewith finds and rules that Madison's claims accrued

on that date. Thus, the 300-day administrative filing clock

commenced to run thereon, later expiring on April 28, 1994.

Conseguently, the court finds and rules that Madison's

April 29, 1994, charge of discrimination was untimely filed.10

C f . Baldwin County Welcome Ctr. v. Brown,

(1984) (per curiam) ("Procedural reguirements established by

Congress for gaining access to the federal courts are not to be

disregarded by courts out of vague sympathy for particular

litigants. . . . '[I]n the long run, experience teaches that

strict adherence to the procedural reguirements specified by the

litigation is the best guarantee of even handed administration of

the law.'" (guoting Mohasco Corp. v. Silver,

(1980))).

10The court further notes that since Madison was represented by counsel since, in the least, the time of her NHCHR filing, eguity, under any construction of the facts, does not warrant tolling of the limitations period beyond the statutory 300-day limit. See, e.g., Hamel v. Prudential Ins. Co . ,

(D. Mass. 1986) ("Civil rights laws need not be interpreted so as to make them traps for the unwary. On the other hand, neither need the laws be interpreted so as to protect those who ought to know better from their own indolence.").

16 b. Filing

Failing her accrual argument, plaintiff alternately asserts

that she actually filed her charge on April 5, 1994, the day she

telephoned the NHCHR.

Title VII provides that charges "shall be filed in writing

under oath or affirmation and shall contain such information and

be in such form as the [EEOC] reguires." 42 U.S.C. § 2000e-

5 ( e ) (1) (emphasis added). The timeliness of the filing is

determined by the date on which the charge is received by that

agency.

(a); accord McIntosh, supra, 71 F.3d

at 36 (filing date for limitations purposes was not triggered by

mailing copy of complaint to district court nor by facsimile

transmission of incomplete complaint; action was deemed filed

when clerk of court actually received mailed copy); Johnson v.

Host Enter., Inc.,

(E.D. Pa. 1979)

(plaintiff mailed employment discrimination charge to EEOC on

17 6th day after alleged unlawful discharge; however, his charge

was not received by the Commission until 183 days after the

discharge, and his Title VII claim was dismissed).

A certified copy of the Charge submitted to the court bears

the NHCHR's stamp attesting that Madison's written charge of

discrimination was received by the Commission on April 29, 1994.

17 See Charge of Discrimination. Given the foregoing, the court

finds and rules that the plaintiff's alterative theory runs

contrary to applicable federal statute, regulation, and case law,

and, as such, is without merit. Accordingly, plaintiff's claim

for relief under the ADA must be and herewith is dismissed with

prej udice.

4. The State Law Claims

Plaintiff further invokes the supplemental jurisdiction of

this court,

, to assert state law claims of

wrongful termination and enhanced compensatory damages (Counts II

and III) A 1

"The power of a federal court to hear and to determine

state-law claims in nondiversity cases depends upon the presence

of at least one 'substantial' federal claim in the lawsuit."

Newman v. Burgin,

(1st Cir. 1991) (citing

United Mine Workers v. Gibbs,

(1966)).

11The court notes that given the First Circuit's recent decision in Smith v. F.W. Morse & Co . ,

(1st Cir. 1996) (existence of statutory private right of action precludes assertion of common law claim for wrongful discharge) (construing Wenners v. Great State Beverages, Inc.,

,

(1995), cert, denied, ___ U.S. , 116 S. C t . 926 (1996)), plaintiff's wrongful termination claim, and by implication the claim for enhanced compensatory damages, is tenuous, at best.

18 [PJendent1 claims, by definition, consist of state matters over

which Congress did not grant federal courts independent

jurisdiction . . . I d . at 964.

Conseguently, "when a district court dismisses all federal

claims before trial, it normally will dismiss pendent state

actions as well."

Although the court has considerable

discretion in exercising its authority in this area, "the balance

of factors to be considered under the pendent jurisdiction

doctrine--judicial economy, convenience, fairness, and comity--

will point toward declining to exercise jurisdiction over the

remaining state-law claims." Carnegie-Mellon Univ. v. Cohill,

, 350 n.7 (1988).

Inasmuch as the sole federal claim has been dismissed and

plaintiff's state law claims are of dubious vitality, the court

in its discretion declines to exercise its supplemental

jurisdiction.

Conclusion

For the reasons set forth herein, plaintiff's assented-to

motion for leave to file a reply memorandum (document 12) is

herewith granted, such reply memorandum to be docketed as of the

date of this order. Defendant's motion to dismiss (document 7)

19 is granted. The clerk shall enter judgment accordingly.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

August 28, 1996

cc: Gemma Dreher, Esg. Julie Ann Quigley, Esg.

20